by Rabbi Aryeh Klapper
דברים פרק יז:טו
שום תשים עליך מלך אשר יבחר ה’ אלקיך בו
מקרב אחיך תשים עליך מלך
לא תוכל לתת עליך איש נכרי אשר לא אחיך הוא
You will surely place over yourself a king – whom Hashem your G-d will choose him
From amidst your brothers you will place over yourself a king
You are not able to put over yourself an alien man who is not your brother.
Most halakhic readers focus on the first four words of this verse. Is appointing a king an obligation, or only a permission? Does the obligation to put the king “over yourself,” or in halakhic terms “for his awe to be upon you,” prevent meaningful dissent?
Aggadic readers might get four words further. Why is G-d mentioned only after the human activities? What happens if G-d changes His mind, as regarding Shaul? What happens when we have no reliable way of knowing what G-d wants?
Literary readers of course get through the whole verse. For them, the immediately presenting issue is the redundancy. Why does the Torah take three independent clauses to convey this information, which could easily have been conveyed in one?
Readers focused on gender – like you and me, for the duration of this article – might notice the repeated reference to brothers. Also, one must not appoint an alien man – what about an alien woman?
Maimonides (a complete translation is appended) takes an apparently irrelevant line and focuses it on gender: “A melekh=king” – not a malkah=queen. He then says the same is true of all placements in Israel, that only men can be appointed to fill them.
Rav Mosheh says that he is unable to find Rambam’s source for the extension to all placements. He concludes that Maimonides simply reasoned that women were excluded from the same verse as converts, and therefore must be excluded to the same extent.
There are two straightforward ways to test Rav Mosheh’s theory. First: Does Rambam derive the exclusions of converts and women derived in the same or at least parallel ways? Second: Does Rambam exclude converts and women to the same extent?
Close reading suggests that Rambam does not necessarily derive the exclusions in parallel ways, and that he likely does not exclude them to the same extent.
Rambam excludes converts from the monarchy on the basis of “You are not able to place over yourself an alien man who is not your brother.” He then generalizes this to all positions of serarah, including weights and measures. It seems likely that he makes this generalization because the verse he uses does not refer to monarchy specifically, rather “to placing above yourself.” Rambam then doubles back and claims that it is no longer necessary to state that converts cannot become judges or nesi’im. However, he then cites a different prooftext for the rule regarding judges and nesi’im: “from amidst your brothers you will place over yourself a king.” He then generalizes this apparently superfluous prooftext to all mesimot=placements.
It seems to me that Rambam is setting up two categories of exclusion: serarah and mesimah. Judges and nesi’im fall under both categories; weights and measures under the first but not the second, and there may be unstated cases that fall under the second but not the first.
Rambam then moves on to the exclusion of women. He excludes queens on the basis of “you shall place over yourself a king” – the problem is that that phrase appears twice in our sentence. Possibly Rambam thinks the phrase is repeated to make the point about gender. Either way, the exclusion of women cannot be from the same phrase as the exclusion of converts, which is derived from a phrase that does not use the word “melekh” at all.
Rambam then generalizes the exclusion of women to all mesimot. Unlike regarding converts, he offers no prooftext for this extension; he does not, for example, cite the doubled som tasim of our sentence’s opening phrase, which may again suggest that he is using the second iteration of tasim alekha melekh to exclude women. The absence of a prooftext for the generalization, coupled with the recognition that his prooftext excluding women from monarchy cannot be generalized in the same way as his prooftext regarding converts, suggests that the exclusion of women from mesimot is rabbinic rather than Biblical.
Furthermore, in sharp distinction to his discussion of converts, Rambam never excludes women from serarah, and his prooftext excluding converts from serarah has no obvious exclusion of women. Laaniyut da’ati this should be taken at face value.
To sum up: I suggest that Rambam excludes women d’oraita from monarchy; d’rabbanan from all mesimot, a category that includes judges and nesi’im; and not at all from serarah.
It should be clear that I have thus far made no effort to define and distinguish the categories serarah and mesimah, nor to determine whether a rav hamakhshir fits into either category. All I am contending is that the categories must be distinguished, and that for Rambam there are some roles that women can play even though converts cannot. Those roles do not include dayyan or nasi, and may or may not include inspector of weights and measures or controller of an irrigation canal. I am also contending that acknowledging this distinction undermines Rav Mosheh’s theory as to how Rambam derived the exclusion of women from mesimot.
I must also note that one can disagree with Rav Mosheh from the other direction as well, and claim that Maimonides in fact has a direct Biblical source for excluding women from mesimot other than monarchy.
Here are several possibilities:
1) The eclectic Finkelstein edition of the Sifri reads:
איש נכרי” – מיכן אמרו: האיש ממנים פרנס על הציבור, ואין ממנים האשה פרנסת על הצבור”
This derives the exclusion from the same verse as Rambam’s exclusion of converts, and indeed the word איש seems unnecessary in context.
The standard printed edition of Sifri does not mention any exclusion of woman beyond monarchy, and derived the exclusion of converts from mesimot from the phrase איש נכרי:
.איש נכרי” – מיכן אמרו: אין ממנים פרנס על הציבור אשר לא אחיך הוא”
(The Talmud (Kiddushin 76) derives converts from מקרב אחיך rather than fromאיש נכרי . The GRA emended the Sifri to match the Talmud.) It is possible that the Finkelstein Sifri resulted from someone consciously or unconsciously changing the text of Sifri to match Rambam. The same can be argued more convincingly regarding Midrash Tannaim, which reads like a copy of Rambam:ד”א שום תשים על’ מ’ ולא מלכה מלמד שאין מעמידין אשה במלכות וכן כל משימות שבישראל אין ממנין בהן אלא איש. It can also be argued regarding the commentary of Rabbeinu Meyuchas to Devarim:
איש נכרי – פרט לאשה למדנו שאין ממנין אשה על הציבור
and certainly regarding the commentary of “Raavad” to Sifri:
.האיש ממנין פרנס על הצבור ולא האשה
However, Pesikta Zutrata is thought to precede Rambam, and it reads:
איש ולא אשה – מיכן שאין ממנין אשה פרנסה על הצבור
Since Rambam does not use the word פרנס, this seems clear evidence that the Finkelstein Sifri preceded him. This does not prove that he was aware of it, however.
2) Several ancillary mitzvot related to monarchy are gendered. The prohibition against having “(too) many wives” is ineluctably gendered (assuming that the Torah is heterocentrist), and the obligation to write a Torah scroll is halakhically gendered. Perhaps Maimonides derived from these that no verse was necessary to exclude women, and therefore used the verse more expansively.
3) Sifri to Devarim 1:13, which discusses Moshe’s delegation of judging to lesser officers,
“אנשים” – וכי עלתה על דעתנו נשים?! מה תלמוד לומר “אנשים”? בחתיכה ובפסיפס, אנשים ותיקים וכשרים”
“Men” – Would we have considered women?! So why is it necessary to say “men”? . . .
This text assumes the Biblical exclusion of women rather than demonstrating it.
Despite all these possibilities, and in particular the first, Rambam’s language still seems to me most compatible with the extension being rabbinic.
רמב”ם הלכות מלכים פרק א:ד-ה
,אין מעמידין מלך מקהל גרים אפילו אחר כמה דורות עד שתהיה אמו מישראל
,שנאמר לא תוכל לתת עליך איש נכרי אשר לא אחיך הוא
,ולא למלכות בלבד אלא לכל שררות שבישראל, לא שר צבא לא שר חמשים או שר עשרה, אפילו ממונה על אמת המים שמחלק ממנה לשדות
,ואין צריך לומר דיין או נשיא שלא יהא אלא מישראל
-שנאמר מקרב אחיך תשים עליך מלך
.כל משימות שאתה משים לא יהו אלא מקרב אחיך
אין מעמידין אשה במלכות
,שנאמר עליך מלך ולא מלכה
.וכן כל משימות שבישראל אין ממנים בהם אלא איש
One may not stand-up a king from the community of converts, even after several generations, until his mother is from Israel,
as Scripture says: You are not able to put over yourself an alien man who is not your brother.
This is true not only for monarchy, but rather for all serarut in Israel, neither sar of the army nor sar of 50 nor sar of 10, even someone appointed over a canal which distributes to various fields,
So that it is not necessary to say that a judge or a nasi must be from Israel,
as Scripture says “from amidst your brothers you will place over yourself a king” –
all the placements that you place must be from none but amidst your brothers.
One does not stand-up a woman in monarchy
as Scripture says “over you a king” – and not a queen
so too all placements in Israel one appoints none but men.